Supreme Court Clarifies Controlling Law on Therapy Record Reviews

March 27, 2014 – The state supreme court recently clarified the controlling law when a sexual assault defendant moves for in camera inspection of an alleged victim’s privileged therapy records, which defendant can do in some limited circumstances.

The Wisconsin Supreme Court, in a recent per curiam opinion, clarified that the lower appeals court decision in State v. Johnson controls, because the supreme court previously deadlocked on the issue when deciding the case per curiam in July 2013.

In State v. Johnson, 2011AP2864 (April 18, 2012), a three-judge appeals court panel (2-1) upheld a lower court’s decision to grant in camera review of records, noting the victim could refuse disclosure. But the sanction for refusal was suppression of her testimony.

The defendant, Samuel Curtis Johnson III of the SC Johnson family, of was charged with sexually assaulting his stepdaughter repeatedly when she was a teenager.

There was no physical evidence of assault, but the alleged victim had made statements that served the basis for the prosecution against Johnson.

At the time of the alleged assaults, the stepdaughter was in therapy for potential mental health issues. Johnson wanted in camera inspection of the therapy records, arguing they likely contained information necessary for a determination of his guilt or innocence.

The court ordered in camera inspection, but the alleged victim refused to disclose the records, invoking an absolute statutory privilege to refuse disclosure.

Johnson argued that nondisclosure meant the alleged victim could not testify. The state argued that the court could still compel disclosure through the subpoena process.

The circuit court ruled that it would honor the refusal and the victim could still testify, but the jury would be informed of the refusal and there would be a presumption that the contents of the records contained information that was helpful to the defense.

Both parties petitioned for leave to appeal. Following prior case law, an appeals court majority (2-1) ruled that Johnson was entitled to in camera inspection, but the victim could refuse, and the sanction for refusal was the inability to testify.

On appeal, the supreme court was divided (and two justices did not participate) in a per curiam opinion with varying rationales. Both parties filed motions for reconsideration of the court’s decision for a clarification on the law of the case.

Recently, in another per curiam opinion, the court granted the motion and clarified that “the appeals court decision remains the law of the case” because the court could not reach a four-justice majority.

org jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

“The prior per curiam was incorrect to convey that a majority could be reached by separating whether the medical records must be produced from whether the victim may testify because such a separation would produce new criteria that a majority of the court has not authorized,” the recent per curiam opinion states, supported by a majority.

Justice Ann Walsh Bradley (joined by Chief Justice Shirley Abrahamson) concurred in part and dissented in part. Justice Bradley argued that there was no deadlock in the July 2013 opinion because five justices concluded, with varying rationales, that the circuit court could not compel disclosure of the records, but the victim could still testify.

She said suppression of testimony is not the only sanction when a victim refuses to disclose therapy records for in camera review. The circuit court has discretion to decide.

Justice Bradley also noted that the lower appeals court rejected use of a curative jury instruction creating a presumption in favor of Johnson, and the prior per curiam opinion did not modify that portion of the appeals court’s ruling.